Tuesday, March 31, 2015

by Michael Dorf
Yesterday I noted that Professor Orin Kerr had responded to the challenge posed by CJ Roberts and written the definitive article on The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria. Professor Kerr now informs me that this landmark paper will be published in The Green Bag. Readers familiar with the lightheartedness of that publication will recognize that this is a particularly appropriate placement, but they would be mistaken in thinking that Professor Kerr's article is unserious. It truly is the last word (albeit also the first word) on the influence of Kant on evidentiary approaches in Eighteenth Century Bulgaria. Congratulations to Professor Kerr on a job well done.

A national controversy has erupted over Indiana's recent adoption of a state-level version of the Religious Freedom Restoration Act (RFRA). Apple CEO Tim Cook, who recently came out as gay, wrote an impassioned op-ed in The Washington Post, describing the Indiana law as part of a "wave of legislation" nationwide that "would allow people to discriminate against their neighbors." Cook described the law (and a similar one in Arkansas) as "say[ing] individuals can cite their personal
religious beliefs to refuse service to a customer or resist a state
nondiscrimination law."

The satire just keeps coming, however, as The Onion published "Indiana Governor Insists New Law Has Nothing To Do With Thing It Explicitly Intended To Do," which concluded with a mock quote from Pence: " 'I want to reassure Hoosiers of all backgrounds that this law will never
be interpreted in the way it was unambiguously designed to be from the
very beginning.' Pence further clarified that the act’s sole purpose was
in fact to safeguard the free exercise of religion it was in no way
whatsoever created to protect."

Pence, moreover, could not help but somehow try to connect this to the Affordable Care Act, which he claims "renewed concerns about government infringement on deeply held religious beliefs." Given that the infamous Hobby Lobby decision should have put any such fears to rest (no matter how ridiculous or insincere those fears might have been), it is hard to see how this is anything but an "Obamacare tic," a default move by Republicans to somehow connect everything to a law that they are sure everyone hates (but is actually working quite well).

It is clear that Indiana's new law (and others like it now under consideration in Republican-led states nationwide) is designed to do something, and that something is quite obviously to provide business owners with legal cover to refuse to serve gay people. It is heartening to see the strong national reaction against the Indiana law, with businesses and other groups (including the NCAA, which is based in Indianapolis) coming out strongly against Pence and his disingenuous defense of the law.

In the remainder of this post, I want to focus on the reaction among Republican politicians, in particular soon-to-be-presidential-candidate Jeb Bush, to the Indiana controversy. Bush, of course, is the supposed moderate in the race, and he is apparently trying to win the nomination not by pandering to the seething right-wing base of his party (contrary to Scott Walker, Ted Cruz, and in fact almost every other potential candidate) but rather by expanding the range of people to whom his party could appeal.

A month or so ago, Linda Greenhouse wrote about how
establishment Republicans have been privately happy that gay marriage is
becoming politically passé, and that they are in fact looking forward to the Supreme Court's inevitable decision later this Spring in favor of same-sex marriage. The thinking, apparently, is that Republican politicians can still, when necessary, mutter a few
negative comments about activist courts and the sanctity of marriage, even as they are privately delighted that Republicans will not have to be publicly on the wrong side of history for much longer. The thought is that the party can then begin to appeal to young people on other issues (although I honestly cannot figure out what those issues would be), as the old white people who constitute the party's base move on to their reward.

Greenhouse was incredulous: "You have to admire the chutzpah of party operatives whose national
platform calls for limiting marriage to opposite-sex couples, and for
whom denouncing 'judicial activism' is usually as natural as saluting
the flag, lining up right behind the justices who they hope will relieve
them of the pesky problem of choosing sides in a fast-fading culture
war."

The point of Greenhouse's column, however, was that these Republican leaders were dreaming if they really thought that gay rights issues
would fade away, because it was already clear that the crazy base was hard at work. She described the Elane Photography case as "just the leading edge of a pipeline’s worth of cases in which florists,
bakers and owners of wedding venues are invoking claims of conscience to
shield them from having to do business with gay men and lesbians."

At this point, no one can
predict just how far the crazies will push this issue and others like it. And national Republicans will not be able to ignore what is going on. As Greenhouse put it: "[I]t’s safe to predict that politicians will be confronting these issues
under the glare of a public spotlight. Republicans who expect the
Supreme Court to give them a pass from having to take a stand are in for
a rude surprise."

Which brings us to Jeb Bush. My first thought was that Bush was precisely the person whom Greenhouse was describing, someone who would find the Indiana situation "a rude surprise," and who would do everything possible to change the subject. Bush's "brand" supposedly requires him to avoid stepping into exactly this kind of quicksand.

Yesterday, however, Bush caved, reportedly telling a conservative talk radio host that the new law is "simply allowing people of faith space to be able to express their beliefs." Weirdly, Bush claimed that "[t]here are many cases where people acting on their conscience have been castigated by the government," which is probably a dog whistle for some category of right-wing grievances of which I am blissfully unaware. In any case, Bush tried to finesse the issue by describing this as entirely a matter of being "tolerant" but allowing religious people to practice their religion.

Again, this is all rather surprising. Why would Bush weigh in at all? Even if he was directly asked the question by a conservative interviewer, surely Bush has the political savvy to say something noncommittal. What was he thinking? Three possibilities come to mind.

(1) Bush genuinely believes that this law is a good idea, and that it is necessary to pass such laws to protect religious people from persecution. Much has been made of Bush's conversion to Roman Catholicism, and perhaps he is much more of a religious zealot than his faux-moderate image suggests. In that case, his handlers have a problem, because his viability as a candidate in the general election explicitly is predicated on his not being a religious extremist. The more it appears that he is just as extreme as the other Republican candidates, the more difficult it will be to deny that his political strategy involves using his name and connections to strong-arm the nomination, denying it to people with whom he actually agrees on hot-button, divisive (and broadly unpopular) issues.

(2) Bush does not think that laws like Indiana's are a good idea, but he thinks that supporting them is a small price to pay to get the nomination -- a price that does not risk undermining his image as the one non-extremist in a field of extremists. If that is his thinking, then he would have to imagine that neutralizing this kind of thing in March 2015 will allow him to move onto other issues, leaving behind the divisive culture war stuff. As Greenhouse's analysis suggests, however, such a hope on Bush's part is based on the expectation that cauterizing this bleeder will be the end of the problem, whereas the one thing we know for sure is that the Republicans who run about two-thirds of the state governments in the country are only getting started.

(3) Bush understands that this is a terrible and unnecessary law, and he is privately imagining the horrible things that he would like to do to Governor Pence (who, after all, was one of the most "out there" cultural conservatives when he served in Congress, in the same category as Steve King, Michele Bachmann, and Louie Gohmert). Bush might, however, simply now understand that the establishment wing of the party has a tiger by the tail, and that even he has no choice but to adopt positions that are rejected by corporate CEOs, chambers of commerce, and other groups that are long-time allies of the Bush family.

Back in the Spring of 2011, when it had become clear that the then-new Republican majority in the House was willing to threaten economic Armageddon in the pursuit of anti-government extremism, I wrote a post here on Dorf on Law titled "Is This Why They Bought Congress?" I suggested there that the businesspeople who poured money into Republican coffers must surely have been dismayed by the recklessness of the congressional majority that they had so happily purchased. Four years later, it is difficult to believe that Jeb Bush or anyone else could really be surprised that the party's base is willing to push every extreme measure that they can imagine. But it is at least possible that Bush is in the early stages of learning that there really is no way both to win the nomination of his party and still win the general election.

In any event, if I were a Democratic political advisor, this would be one of those weeks where I really loved my job.

Monday, March 30, 2015

By Michael Dorf
The state briefs in the pending SSM cases have been filed by the representatives of Kentucky, Michigan, Ohio, and Tennessee. They include a predictable mix of three arguments: (1) restricting marriage to heterosexuals serves the rational, non-animus-y interest in addressing the evils of accidental procreation; (2) changes in the institution should come, if at all, through democratic means; and (3) the traditional institution of marriage does not encompass same-sex couples. Needless to say, I'm not persuaded, and I very much doubt that the SCOTUS will be. But prompted by the particulars of the state briefs on point (3), I want to note a very brief follow-up to my March 16 post regarding the brief that Professor Tribe and I submitted, in which we argue that, in addition to striking the challenged laws on equal protection grounds, the Court ought to strike them on the ground that they violate the fundamental right to marriage.

All four of the state briefs cite Washington v. Glucksbergfor the proposition that the Court must be careful in how it defines the fundamental rights it recognizes. That's fair enough, I suppose. Not only Glucksberg but other cases as well describe the enterprise of recognizing fundamental rights as rooted in history and tradition. But what the state respondents apparently mean is something more radical: That the plaintiffs' claim should be rejected because the right to marriage traditionally did not include the right to same-sex marriage.

Glucksberg does not authorize the maneuver attempted by the state respondents in the SSM cases. In Glucksberg, the plaintiffs sought a right of the terminally ill to assisted suicide. The Court rejected that formulation as too narrow, substituting instead a broader formulation (which the Court then rejeted). Chief Justice Rehnquist wrote: "the question before the Court is more properly characterized as whether the 'liberty' specially protected by the [Due Process] Clause includes a right to commit suicide which itself includes a right to assistance in doing so." That is nearly the opposite of the move the state respondents urge in the SSM cases: characterizing the right as too broad, substituting instead a narrow formulation (which they urge the Court to reject).

The idea that the asserted right should be narrowed and then compared with historical traditions was expressed most clearly by Justice Scalia, but only for himself and the late CJ Rehnquist, in footnote 6 of Michael H. v. Gerald D.The Ohio brief cites that footnote once for another proposition and also cites another footnote of Michael H., carefully avoiding expressly relying on footnote 6--but the care is unavailing because it's obvious that Ohio and the three other state respondents in fact are making the footnote 6 argument. That argument has been repeatedly rejected by the full Court, as Professor Tribe and I note in our brief.

But we're hardly the only ones to note in the context of marriage that the Court's precedents reject reliance on tradition narrowly defined. As Judith Schaeffer explained on Slatelast week, then-Judge John Roberts said the same thing at his SCOTUS confirmation hearing.

by Michael Dorf
Last December, in the course of reporting on the anti-intellectualism of various members of the Article III judiciary (both liberal and conservative), I promised a "laudatory blog post for anyone who gets a U.S. law review to publish an actual article on Kant's influence on 18th Century Bulgarian evidence law." Professor Orin Kerr has now written the (understandably extremely short) article, but so far as I know, has yet to have it accepted for publication in a law review. I'll update with the full laudatory mention if and when that happens. (And no, this is not an early April Fool's post.)

by Michael Dorf
Last week's SCOTUS decision in Young v. UPSfeatured an interesting disagreement about the scope of the Pregnancy Discrimination Act (PDA) between the majority--Justice Breyer, writing for himself and Justices Ginsburg, Roberts, Sotomayor, and Kagan, with Justice Alito concurring in the jugdment--and the dissent-- Justice Scalia, writing for himself and Justices Kennedy and Thomas. At issue was the second clause of the PDA. The first clause defines discrimination on the basis of preganancy as sex discrimination, and everyone agrees that this clause bars intentional discrimination on the basis of pregnancy. The second clause adds: "and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . ." The dissenters thought that this provision merely clarifies the anti-discrimination norm, whereas the majority thought it went beyond, requiring accommodations even absent discriminatory singling out of pregnant women in some circumstances.

My view, for what it's worth, is that in some sense both the majority and the dissent are right. The second clause clarifies, but what it clarifies is that some job criterion can be discriminatory against women or pregnant women even though the criterion doesn't neatly place everyone into either the male or female category, or the non-pregnant or pregnant category.

As both Justice Breyer's majority and Justice Alito's concurring opinion illustrate, the fact that discrimination can be a matter of degree rather than simply on/off calls for some difficult judgments. What happens when, as in Young itself, the employer provides accommodations to some people who are similar in their ability or inability to work as pregnant women, but doesn't provide accommodations to other pepole who are similar, and doesn't provide accommodations to pregnant women, albeit on the basis of some broader supra-category that includes pregnancy but is not pregnancy itself. (UPS accommodated workers with lifting restrictions who were injured on the job, who were entitled to an accommodation under the Americans With Disabilities Act, and those who had lost their Dept of Transportation certificates, but not other workers with lifting restrictions.)

It's worth noting how Young provides an echo of the circumstances that gave rise to the PDA itself. We have a PDA because of the mid-1970s Supreme Court's extreme formalism with respect to the relation between pregnancy discrimination and sex discrimination. In 1974's Geduldig v. Aiellothe Court ruled that under the Equal Protection Clause discrimination on the basis of pregancy is not tantamount to sex discrimination because the former distinguishes between "pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes." In 1976, the Court applied the same "logic" in General Electric Co. v. Gilbertto hold that pregnancy discrimination is not sex discrimination for federal statutory purposes. Because Geduldig was a constitutional holding that has not been overruled, it remains the law, but Gilbert was superseded by the PDA.

The argument accepted by the dissenters in Young provides an echo of Gilbert because it too sounds in formalism. UPS isn't discriminating on the basis of pregnancy, the company argued and the dissenters agreed, because UPS distinguishes not between pregnant and nonpregnant persons but between, on the one hand, those pregnant women with lifting restrictions and other workers with lifting restrictions due to circumstances that do not fit within the three favored categories, and, on the other hand, workers with lifting restrictions due to circumstances that do fit within the three favored categories.

To say that the dissenters echo Gilbert is not to say that they are necessarily wrong (although I do think they are wrong). Even the majority Justices were unwilling to say that disadvantaging pregnant women relative to any other workers with similar disabilities--what Justice Breyer called a "most favored employee" apporach--is required by the PDA. But just because the disadvantaged group is part of a larger disadvantaged group that is not defined by pregnancy does not mean that the employer hasn't violated the PDA.

The majority in Young says that a PDA violation will be found under the second clause of the PDA where--in response to a prima facie case by the plaintiff--the employer fails to come forward with a pregnancy-neutral reason (other than cost or convenience) for failing to give pregnant employees the same accommodation as non-pregnant employees who are similarly situated w/r/t their ability or inability to work. To my mind, this is a sound result but the point I would emphasize even more than that is that the majority, like the dissent, ends up reading the PDA's second clause as an elaboration of the anti-discrimination principle articulated in the first clause.

However, the majority has a more expansive conception of discrimination and how one proves it than does the dissent. Indeed, in prior opinions both for the Court and for himself Justice Scalia has strongly resisted any suggestion that an anti-discrimination norm can be advanced by any notion of disparate impact. Note too that while Justice Breyer's majority opinion in Young distinguishes between disparate-treatment and disparate-impact causes of action per prior case law, the actual holding inevitably posits a relation between the two.

Friday, March 27, 2015

by Michael Dorf
On Monday, Justice Kennedy sent the blawgosphere into a bit of a tizzy when, in the course of testifying before the House Appropriations Committee, he answered a question about statutory interpretation by saying the following:

We routinely decide cases involving federal statutes and we say, "Well, if this is wrong, the Congress will fix it." But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes . . . . That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of . . . government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.

That statement was tizzy-inducing because it can be read as bearing on King v. Burwell, in particular, to an exchange between Justice Scalia and Solicitor General Verrilli. In response to the suggestion by Justice Scalia that Congress can always fix the ACA if it turns out that reading it to make subsidies unavailable on federal exchanges, SG Verrilli expressed extreme skepticism that "this Congress" would do so. Justice Scalia, either feigning or displaying ingenuousness, then indicated that any Congress would fix a serious problem. Justice Kennedy may not have been referring to King but if he was, that looks like bad news for the Obama Administration.

To be sure, as I have previously noted, there are at least four ways to get to a government win--none of which requires making any assumptions at all about gridlock. The Court could find that: (1) based on the overall language and context, the ACA as a whole is best read to allow subsidies; (2) the statute is unclear but the Administration gets Chevron deference; (3) the statute is unclear and thus fails the clear statement requirement for conditional spending under South Dakota v. Dole; or (4) the statute is unclear and thus the canon of constitutional avoidance should be invoked to prevent a construction that would potentially violate the constitutional limits on conditional pre-emption. None of these paths depends at all on any view about the consequences of gridlock for statutory interpretation.

Moreover, even if the Court were to give some weight to the fact of gridlock in construing unclear statutes, such a consideration would not likely be more powerful than considerations (2), (3), and (4) listed above. And for that reason neither the government nor its amici affirmatively invoked gridlock as a reason why the Court ought to rule for the government. Put differently, Justice Kennedy might think that gridlock is an insufficient basis for ruling for the government but that one of the other grounds is sufficient.

But even if not, it's worth noting that the view underlying Justice Kennedy's statement actually supports a win for the government in King. Assuming that Congress is well functioning and committed in good faith and with good will to solve problems is practically the credo of purposivist statutory interpretation. As Hart & Sacks famously put the point in the 1950s (with the sexist language of the era): "The statute ought always to be presumed to be the work of reasonable men pursuing reasonable purposes reasonably, unless the contrary is made unmistakably to appear."

As an aside, it's worth noting that although this language is frequently quoted as reflecting the views of Hart & Sacks, it appears in a list of propositions about statutory interpretation, with the entire list prefaced by the following question for the reader: "Are the following conclusions well founded?" But I pass over the point here because I'm less interested in elaborating the views of Hart & Sacks than in describing purposivism.

The crucial point is that someone who assumes that Congress was acting reasonably would look at the ACA as a whole and would find therein no unmistakeable evidence that Congress wanted to send state private health insurance markets into a death spiral. Thus, to the extent that Justice Kennedy was articulating a general philosophy of statutory interpretation, it's one that supports the government's position.

But suppose that Justice Kennedy concludes either that the statute unmistakably requires the unreasonable conclusion that there are no subsidies on federal exchanges or that he thinks that such a result is not in fact unreasonable. What about his further claim that the Court ought not take account of gridlock? To put the question as provocatively as I can: If the Court is willing to assume, sometimes counterfactually, that Congress was acting reasonably when the Justices try to make sense out of the statutes Congress enacted, why shouldn't the Court also assume, sometimes counterfactually, that Congress will act reasonably by enacting new legislation to correct any problems created by a judicial interpretation of the existing law?

The answer, I think, is that the counterfactuals are of a different character. Assuming that Congress consists of reasonable people when it in fact includes a considerable number of maniacs is a way for the Court to show respect for a coordinate branch and thus for the democratic process. By contrast, one need not assume away gridlock in order to show respect for Congress because gridlock is a structural feature of our constitutional system, rather than simply a product of bad faith and partisan hackery. As I discussed in my column and post on Wednesday, gridlock is a consequence of having multiple "veto players" who can block legislation.

Thus, one can make respectfully counterfactual assumptions with respect to Congress and still take account of gridlock.

Let me elaborate by juxtaposing two possibilities. An honest opinion along the lines Justice Kennedy may have been hinting at might go like this: The plain meaning of the ACA appears to make subsidies unavailable on federally-established exchanges but that could be calamitous for many states. Nor can we rely on Congress to correct the calamity because Congress is controlled by Republican ideologues who would rather see millions of people lose their health insurance than improve a law that they associate with a Democratic president who they (and/or much of their core constituency) regard as a socialist-atheist-Muslim-dictator-traitor. Thus, we must creatively construe the ACA to protect the country against a calamity that our crazy, craven Congress would welcome.
One can see how such an opinion would be less than fully respectful of a coordinate branch. However, it would also be possible to write the opinion in the following, more respectful way: The plain meaning of the ACA appears to make subsidies unavailable on federally-established exchanges but that could be calamitous for many states. Nor can we rely on Congress to correct the calamity because the Constitution, by deliberate design, makes lawmaking difficult, and there are deep divisions among elected officials that render it unlikely that a coalition would emerge for a legislative fix. Thus, we must construe the ACA according to the reasonableness assumption in order to preserve and protect the output of the arduous lawmaking process.

Thursday, March 26, 2015

In my new Verdict column, published today, I continue a discussion that I began two weeks ago in a Verdict column and its associated Dorf on Law post. In those earlier pieces, I discussed whether the debt ceiling statute, and the constant threat of a constitutional violation that the mere existence of the debt ceiling creates, requires a president to engage in executive actions designed to delay as long as possible a potential drop-dead date. The politically salient part of the analysis was that those executive actions would most definitely include large increases in tax collections, which is hardly what the Republicans who love to use the debt ceiling for bargaining leverage would find appealing.

Today's Verdict column begins by noting the various ways in which a president would be compelled to act, if he wished to avoid being guilty of failure to prevent a default or other constitutional violation. The new, main point of the column is that these executive actions are not merely politically unappealing to the party of "no new taxes," but that they would remove an important aspect of modern legislating, an aspect on which both parties have long relied: regulatory gap filling. Congress, for good reasons and bad, finds it difficult or impossible to anticipate every possible situation that could arise under a law, which leads it to write laws in a way that the executive branch can later interpret via regulatory guidance (and, inevitably, prosecutorial discretion).

All such executive actions, however, have revenue and spending implications. If the president must avoid/delay a debt ceiling crisis by doing everything possible to spend the minimum and collect the maximum dollars authorized by Congress's laws, then he has effectively lost the discretion that Congress otherwise would seem to have bestowed upon him. Every executive action, under this line of thinking, would need to be deficit-minimizing, even if doing so were wholly inconsistent with congressional intent or simply good policy making.

Of course, one way for Congress to avoid these unintended consequences would be to stop writing laws that grant executive discretion in the first place. In some circumstances, I think that would be a good idea. For example, the Dodd-Frank financial reform act left far too many aspects of the law to be filled in by executive rule-making, an arena in which Wall Street has far too much influence. More than four years later, there are still important regulations under that law that have not been promulgated. Even so, there is nothing in the Dodd-Frank experience that says that it is generally desirable -- or even possible -- for Congress to write laws in a way that calls for no further executive discretionary actions.

But the other way for Congress to ensure that the debt ceiling statute does not create perverse results and unintended consequences is ... wait for it! ... to repeal the law. To paraphrase Chief Justice Roberts: "The way to stop having debt ceiling crises is to stop having a debt ceiling." In today's Verdict column, I argue that there is nothing good about the debt ceiling, responding to those who claim that the statute has been a "useful" way to focus Congress's attention on deficit and debt issues. My argument there was that the downside risk is simply too horrific to justify whatever mind-focusing benefits debt ceiling standoffs might provide, especially because the annual budgeting process already gives Congress ongoing opportunities to achieve whatever changes in fiscal policy that it wishes to achieve.

The next step of the analysis, however, would be to ask whether there are ways to "mend, not end" the debt ceiling that would somehow preserve the purportedly good things about the debt ceiling without threatening global economic collapse. As it happens, one of the many astroturf deficit-scold groups has used the recent return of the debt ceiling to propose various ways to change the debt ceiling, so that it could help the world fight the oh-so-awful deficit/debt situation in the United States. Because this group is indistinguishable from any of the other astroturf deficit-scold groups that litter the DC landscape, I will not use its official name here. Instead, I will simply refer to it as the GDHC, for Generic Deficit Hyperventilation Committee.

Most of these groups, and certainly the GDHC, are directly or indirectly funded by one obsessed billionaire, who has spent years and millions of dollars sowing deficit panic to justify attacks on Social Security and Medicare. That these groups insist on ignoring reality about the U.S. fiscal situation, and in particular that they reflexively reject all good news on the subject, is a symptom of that obsession. But I digress.

Notwithstanding the GDHC's obvious bad faith, I have to give them credit for acknowledging just how bad it has been for Republicans to threaten default via debt ceiling showdowns. The problem is that they seem to think that it is possible to fix an unfixable law. What is especially interesting about their list of proposed fixes is that each of them either relocates the same problem to a different, but equally damaging point, or they amount to implicit repeal of the debt ceiling.

On the latter point, consider the suggestion to "[i]ncorporate the debt limit into Congress’s fiscal decision making," which they suggest can be achieved in three different ways. Yet each of those suggestions -- "Automatically increase the debt limit upon passage of budget resolution," "Require reconciliation instructions to increase the debt limit to accommodate debt levels in the budget resolution," and "Require legislation with significant net costs to include an increase in the debt limit" -- are merely variations on the so-called Gephardt Rule, which simply negated the debt ceiling statute by making the limit comport with the borrowing implied each time that Congress enacted spending and taxing laws.

The other suggestions, whatever their other merits, simply miss the mark. For example, GDHC suggests that the debt ceiling be tied to "more meaningful economic measures" by either "[s]ubject[ing] debt held by public instead of gross debt to the debt limit," or "[i]ndex[ing] the debt limit to GDP growth, effectively capping debt-to-GDP." Although I have frequently commented on the particular absurdity of using gross debt as the target in the debt ceiling statute, neither of these solutions solves the real problem. Even if the ceiling were set as a matter of debt-to-GDP, there will still be times when that limit would be reached. In fact, if we were at that limit when any kind of adverse fiscal shock happened along, the legally required result would be to engage in measures that would make the economic downturn worse.

Easily the worst idea, however, is to "[a]pply the debt limit to future liabilities and unfunded obligations." Last year, in a series of posts here on Dorf on Law (last post here, with links to the earlier posts therein), I noted the craziness involved in so-called Generational Accounting. Even if one were to disagree with some of my particular critiques of that infinite-future-term accounting method, we know for sure that the state of the art in long-term forecasting is nowhere near good enough to provide a meaningful guess about future liabilities and unfunded obligations. In fact, the guesstimates offered by proponents of that method of accounting jump around constantly, changing by trillions of dollars in response to changes in various assumptions about economic variables.

Perhaps the most generous thing that one can say about the GDHC's list is that they could be providing a fig leaf to allow Republicans to back away from the debt ceiling law without admitting that they are doing so. There will surely never come a day when Republicans in Congress agree simply to repeal the debt ceiling, but maybe if the Gephardt Rule is renamed the "new-and-improved end of debt for the good of future generations debt limit statute," then maybe they will vote for it. Based on the GDHC's track record (and that of its sibling organizations), however, I doubt that they are thinking about it in that way.

In any event, nothing on the GDHC's list suggests that there is a good version of a debt ceiling statute, or even a better version. The only good things on their list are tantamount to repeal. Which is precisely the point.

Wednesday, March 25, 2015

My latest Verdict column discusses a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution. Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner.

The main point of my column is not, however, to defend liberal constitutional scholars against Professor Sherry. My chief aim is to examine an unspoken premise that she and Epstein share: namely, that implementing economic libertarianism in the name of the Constitution would require a substantial change to our existing constitutional regime. I challenge this assumption in two ways. I note that: (1) while the SCOTUS has not accepted the invitation of the economic libertarians to revive Lochner as a matter of substantive due process, the Court has in fact been very friendly to the deregulatory agenda of economic conservatives while using other doctrines; and (2) the main contribution of the American Constitution to economic libertarianism comes not from judicial enforcement of the Constitution or courts more generally, but from the hard-wired features of the U.S. Constitution—its multiple “veto players”—that tend to stymie efforts to adopt progressive policies.

I suggest at the end of the column that all is not lost for liberals, however, because multiple veto gates make it difficult to change the status quo, so that when progressives do manage to secure legislation that advances their agenda, conservatives will have a difficult time repealing it. And indeed, as I note in the column, that is how things have worked out over the last 35 years or so. With the exception of AFDC—which was “reformed” by a Democrat—the key elements of the social safety net adopted by the Democratic coalition during the New Deal and Great Society periods—Social Security, Medicare, and Medicaid—remain.

But I do not want to appear Panglossian. The fact of multiple veto players in the U.S. constitutional system does not merely exert a status quo bias. It exerts an anti-regulatory bias. The reason is that much of what progressives want requires annual appropriations and executive energy. It is notable that each of the programs mentioned in the last paragraph is an “entitlement” in the sense that Congress need not vote for new funding each year in order to sustain it. And while there is some bureaucracy associated with these programs (e.g., to determine eligibility for Social Security disability or to oversee reimbursements), the basic role of the federal executive for each is cutting checks.

However, much progressive legislation does not take the form of entitlement spending and is thus vulnerable to the anti-regulatory bias of multiple veto players. For example, a determined conservative Congress--or just a conservative blocking coalition in Congress--can severely undercut statutes aiming at environmental protection or preventing and remedying housing discrimination without repealing those statutes simply by failing to fund the relevant enforcement mechanisms annually. Likewise, a determined conservative president can exercise prosecutorial discretion and otherwise enforce regulations less than fully vigorously.

In recent years, non-defense discretionary spending has been about 17% of all federal spending, whereas entitlements have accounted for about half of federal spending. Or in crude terms, that means that about three out of every four "progressive" dollars the government spends is largely protected against the libertarian bias of our multi-veto-player system. Actually, the fraction is substantially larger even than that, because much of the non-defense discretionary spending is on things like transportation, international relations, and other matters that are not regulatory at all, much less progressively regulatory. We need not get bogged down in accounting conventions, however, to say with confidence that a very large majority of progressive federal dollar spending is in entitlement programs that are largely immune from the multi-veto-player libertarian bias.

That would be generally good news for progressives if the only point of government were to provide a social safety net. But of course the goods produced by different kinds of government programs are often not substitutable in any meaningful sense. Yes, (somewhat) progressive tax rates and Social Security get locked in by the multi-veto-player nature of the U.S. government, but so does protection against needed regulation for politically well-connected multi-billion-dollar industries.

Indeed, focusing on the veto-player-protected entitlements misses the fact that the smaller dollar figures at stake for non-defense discretionary spending are themselves partly the product of the veto-player phenomenon. In our system, it is extremely difficult to generate and sustain the political will necessary to regulate, rather than simply to tax and transfer. Of course, I'm not saying that it's easy to enact tax-and-transfer programs. But given that such programs have staying power, it is easy to see why progressives have tended to focus what political power they have on enacting such programs.

Finally, this analysis suggests that criticism of President Obama for "wasting" so much of the first half of his first term on the ACA is short-sighted. A Democratic president who wants to do lasting good sensibly focuses his domestic policy agenda on enacting or expanding entitlements. Whether Obama ends up having succeeded will depend ultimately on a factor beyond his control: Whether the SCOTUS--which, in truth, is yet another veto player in our system, guts the ACA in King v. Burwell. (I discount the possibilty that a future Republican president would be able to undo the ACA by purely executive action, although that would be a live issue were the Court to uphold federal subsidies in King via Chevron deference, as I've noted before.)

Tuesday, March 24, 2015

Having frequently complained about the low quality of the U.S. media (as recently as four days ago, in fact), it is worth pondering whether the media from other countries are equally bad, or worse. My best interviews have been on the BBC and Al Jazeera, whereas easily the worst interview I have ever seen -- much less participated in -- was on CNN. (The CNN interview was so bad, in fact, that it was never aired, because the reporter simply did not understand the issue well enough even to ask coherent follow-up questions.)

That most definitely does not mean that all foreign news sources are of equally high quality. Vladimir Putin apparently imagines the day when a Russia-based news agency will be a significant force in international news coverage. I was recently contacted by something called Sputnik News. A very cursory search on the web suggests that this is a recently renamed news agency (formerly RIA Global, or something like that), which clearly intends to hold itself out as a professionally run news source. It is, however, a creation of the Russian government, so far as I can tell. For example, when I checked their website a few moments ago, the banner across the top read: "West needs puppet in Moscow to free up Russia's natural resources." Draw what conclusions you will.

I should not be too hard on the Sputnik News reporter. English is not her first language, and she appears to be rather new to her job. She did not appear to bring any bias to the piece, but rather she had picked up the usual confusions about the debt ceiling. So, for example, after asking, "What are the possible consequences of US Congress not raising US debt ceiling?" her next question was: "Is another shut down looming?"

That confusion is hardly unheard of in the U.S., of course. Indeed, because the debt ceiling deadline was looming during the October 2013 government shutdown, I ended up writing two Dorf on Law posts (here and here) untangling the differences. (Revealingly, the first of those posts was titled: "What Can We Say About Government Shutdowns That Is Not (Completely) Related to the Debt Ceiling?") Although the difference between a debt ceiling showdown (constitutional catastrophe) and a government shutdown (policy mess) could not be more stark, even U.S.-based reporters get that one wrong all the time.

The next move was similarly familiar, but more jarring. After asking about the "extraordinary measures" that the Treasury is now using to avoid default and other reasonable questions, I was surprised that the reporter ended the questions with these two: "What should the US government do to decrease the debt? Is it possible to decrease it at this point altogether?"

Because the level or growth of the debt are really not what is at stake in the debate over the debt ceiling, these questions are really beside the point. Therefore, I responded by explaining why there is no good reason for the U.S. government (or, for that matter, any well-run business) to try to eliminate or even reduce its debt. Again, that argument would be the same even if there were no debt ceiling statute, but in this context, it was a point that obviously needed to be made.

To her credit, the reporter responded by changing what was apparently going to be the focus of her story. What she wrote is really a story about whether debt and deficits are good or bad, not about the consequences of Republican hostage-taking via the debt ceiling, or about President Obama's options if the Republicans fail to increase (or suspend, or repeal) the debt ceiling this summer. The title of the article itself makes this clear: "Raising US Debt Profitable Economically, Unfavorable Politically - Experts."

What is especially interesting, however, is what the other "experts" said about debt. After accurately quoting my comments, the reporter quoted an applied economist for the proposition that, "[p]olitically, it is not a good thing to be running up debt on a sustained long-run basis." Why? While not quoting her source directly, the reporter descibed the source as saying that raising the federal debt limit is "malpractice." Note that, if this is an accurate quotation, the source himself confused "debt limit" with "debt," which is a rather revealing error.

But in any event, why would increasing long-run debt amount to political malpractice? "[B]ecause it allows the political class to borrow and invest funds at present that are not being timely paid for." Then another direct quote: "They [US government] are getting something supplied but they are not
having to pay 100 percent. Somebody else in the future is going to pay
for it."

The third "expert" was a spokesman for a right-leaning DC think-tank. Although his comments were more measured, he argued that it is "probably not" fiscally responsible to increase the debt limit. Saying that debt accumulation is a bad thing, this supposed expert then said, "We are spending this year, for instance, a half trillion dollars more than we are bringing in in revenues, and that is problem."

The Sputnik News reporter can certainly be excused for not knowing enough about U.S. fiscal policy to follow up on these blatant misrepresentations, but these quotations do tell us that the state of understanding among supposed American experts is shockingly bad. The quoted economist uses the debt ceiling to rant about "the political class," falling back on the most tired claims about future generations having to pay for the debt. "They" (the political class) are getting something for nothing. It is not even, mind you, the recipients of the government programs that are financed by borrowing who are benefiting, but the politicians themselves. And, of course, it is not even conceivable to the supposed expert that the government can invest funds in a way that pays those future generations in higher incomes and higher revenues.

Meanwhile, the think-tank guy acts as if a $500 billion deficit is still a big thing, when the 2015 deficit (actually projected at $468 billion) is only 2.6% of GDP. The numbers have come down so dramatically in recent years that the deficit-scold organizations have been frantically issuing press releases saying, as Jonathan Chait described it last fall, "Pay no attention to the falling deficit!"

I pity anyone who tries to understand the U.S. fiscal debate, given how much nonsense is out there. Economics continues to be used as a way to dress up the most crass anti-government prejudices, and numbers can always be quoted out of context to twist reality. I guess I will have to satisfy myself that I am on the record saying this: "There is no good economic reason why the debt should not go up." Well said, Professor Buchanan. Sure, it is a double negative, but well said.

Monday, March 23, 2015

I was recently asked to guest teach
a class at Michigan State Law School on the topic of the appropriate judicial role
and whether the Supreme Court is or is not a real court (I argue in my book the
Court is not a real court). I was quite flattered and happy to do it but also
thought the students might like to hear about this topic from a real judge so I
asked my friend and sometimes writing partner Judge Posner if he would meet
with the class as well. He graciously agreed and through the marvels of modern
technology (well almost, as there were a few glitches on my end) we had a Skype
with people in three different states.

There was a general consensus in
the room among Judge Posner, myself, and several faculty members (Mae
Kuykendall, Jim Chen and David Blankfein-Tabachnick) that the legal realist account of how judges decide
cases was mostly accurate. We all agreed that legal doctrine rarely drives
results in hard cases and that judges are, and should be, aware of the practical consequences
of their decisions. We also agreed that stare decisis, while having some effect on how lower court judges make their decisions, plays virtually no role in
generating decisions in the Supreme Court.

Agreement broke down, however, when
we discussed what level of candor we should expect from judges in general and
the Supreme Court in particular. I argued that it is inappropriate for the
Supreme Court to hide behind standard and misleading methods of constitutional interpretation
such as precedent, text, and historical analysis when we all know (per our
acceptance of the realist critique) that decisions are generated more by what
Judge Posner calls “priors” and what I call values writ large, than by legal
doctrine. This problem is more pronounced at the Supreme Court than other
courts because the Justices choose the hardest cases, there is the most at
stake, and there is no effective review of their decisions.

Judge Posner argued strenuously that
I was holding judges in general and the Supreme Court in particular to a
standard of candor that we do not place on members of Congress, the President,
and other public officials. Judge Posner stated that we know politicians are not candid about the reasons motivating their political choices and we should not be surprised that judges
do the same. Judge Posner did distinguish between affirmatively lying, which
judges should not do, and not disclosing the true bases of decisions, which he
felt was inevitable.

I argued that federal judges are
governmental officials appointed for life who exercise coercive power over us and
the rule of law requires they tell the litigants and the public the true
reasons for their decisions (as best they can). For example, I have argued that Justices Scalia
and Thomas quite clearly do not follow an originalist methodology across huge
portions of constitutional law and they should stop pretending that they do.
Judge Posner suggested that it is quite possible they think originalism drives their decisions and their failure to own up to the priors that actually generate
their decisions is based more on a lack of self-reflection than bad faith. I
quibbled that since just about everyone outside the Court agrees doctrine does
not really drive decisions, that lack of self-reflection on the part of the
Justices was a bit alarming. Professor Chen, who earlier in the
discussion made a similar point, was sympathetic to this suggestion.

During the course of the
discussion, Judge Posner identified Justices Holmes, Cardozo and Jackson as three of his
favorite Justices and Learned Hand as one of his favorite judges. He
also lamented that most current Justices do not have any significant political experience
and we would all be better off if there were a few ex-governors or ex-senators
on the bench. I think we all agreed with that complaint.

Towards the end of the class, I
asked what people thought would happen if one of the Justices gave a public
talk admitting that the Court decides cases as Judge Posner described he
decides cases. Get a sense of the fair and just result, conduct relevant
research, make sure the consequences are not terrible, and then take a peak to
make sure prior legal doctrine does not forbid the decision (in the Court’s
case, as opposed to lower court judges, the last step can basically be
skipped). In other words, what would happen if the Justices admitted that they
functionally make all-things-considered decisions. Professor Kuykendall
responded that she thought the American people would welcome such candor (especially given the low esteem surrounding the legal profession) and most people would be pleased the Court was finally admitting what the rest of the world
already suspects.

I hope, but I am not optimistic,
that one day we will find out if her prediction is correct.

Friday, March 20, 2015

Two years ago, in "The Downside of Outsourcing Political Oversight to Comedians," I commented on the unfortunate fact that Jon Stewart and Stephen Colbert had come to fill the role that a robust political media should have been playing, if only we still had anything resembling a healthy political press in this country. Lacking that important corrective that should be provided by a skeptical press, the only people left to speak truth to power were the late night comedians.

The problem, of course, is that those comedians are comedians first and foremost. Even people who are as smart as Stewart and (especially) Colbert cannot be expected to have absorbed either journalistic norms or anything resembling deep knowledge of any subject matter. Both Stewart and Colbert have excellent BS meters, and their commentaries have often been extremely important to the political discourse in this country. As I described last month in "Is It Too Soon To Say That I Won't Miss Jon Stewart?" however, even a finely tuned BS meter can lead him astray at times.

One potential solution to the problem of lack of expertise by a talk show host, of course, is to hire experts as researchers and writers. The economic model of late-night talk shows is generally not going to support that strategy, however, because the most valuable staff must necessarily be joke writers. Besides, why develop any expertise when the goal is to produce a four-minute segment?

"Daily Show" alumnus John Oliver seemed to have broken the code, however, when he introduced his show "Last Week Tonight" on HBO last year. After a quick monologue, each week's show is devoted to a long-form analysis of a serious public policy issue. Oliver's staff clearly does real research, including statistical research, in preparation for each week's big topic.

Although Oliver always makes it funny, he is very serious about his analysis, and he takes on important issues: America's crumbling infrastructure, election of U.S. state judges, tobacco companies' intimidation of small countries that try to regulate or ban smoking, the death penalty, and similar issues. Because there are no commercials, the 30-minute show really is 30 minutes long, giving them more than 20 minutes each week to devote to their central issue.

Last week's episode, however, seriously missed the mark. Keyed to the beginning of college basketball's "March Madness," Oliver passed up the opportunity to do something serious, instead being satisfied to list a bunch of half-baked arguments that supposedly prove that college athletes should be paid cash salaries.

I have occasionally written about this topic, coming out strongly against changing the NCAA's ban on cash payments to athletes. (Most recently, see this Verdict column from last August.) In this post, however, I do not want to revisit that debate. Instead, I want to describe Oliver's big fumble, and to think about what he might have done differently.

Most people are familiar with the basic set of claims that motivates calls for paying cash salaries to college athletes. TV money has increasingly poured into football and men's basketball. Coaches are the highest-paid employees of most NCAA Division 1 universities. Players are often treated badly and tossed aside if they are injured or break seemingly petty rules. I do understand that a few people view the issue as one of free markets and similar matters, but Oliver's rendition of the indictment of the current model accurately captured the standard set of complaints.

The problem is that most elements of that standard indictment do not support the conclusion that Oliver and others reach. For example, he rightly points out that universities are currently permitted to avoid paying the medical bills of college athletes who become injured, and that the athletes can lose their scholarships as well. That, however, simply calls for a requirement that universities pay for health care coverage (especially disability insurance), and that they guarantee scholarships for students, even for former athletes after they stop playing.

"Simple" is not "easy," of course, and there are surely university administrators who make indefensible arguments against those reforms. Even so, the point is that Oliver's outrage (which, to be clear, appears to be the same outrage that one hears in most conversations in this country about college sports) is misdirected. Especially because the typical athlete would not be paid enough to buy his own disability insurance (and would probably have to be required to do so, even if he could afford it), this very real problem calls for a very different solution.

Similarly, Oliver points out (and had some very juicy film footage demonstrating) that some college coaches are bigoted psychopaths. They are also being paid millions of dollars. Oliver, however, uses that as an opportunity to say that college athletes must feel pretty rotten about not being paid, given that they have to tolerate being yelled at by a psychopathic millionaire. It is hard to see how paying salaries to the athletes is the right answer. I suppose that it might feel better to say, "I'm being paid 1 or 2 percent of what that psycho is being paid to call me a f*ggot," but that seems to miss the point. Again, it would surely not be easy to get universities to change on these matters, but why is the right answer to "the players are being verbally and physically humiliated" not to stop them from being humiliated?

The big issue, however, is whether the athletes are really students. After spending much of his show completely ignoring the compensation that athletes do receive -- full-ride scholarships that can be worth hundreds of thousands of dollars -- Oliver finally turned to the question of whether education could count as the "pay" that athletes receive from their universities. Unfortunately, he again missed the opportunity to make and support a real argument.

Instead, Oliver made two claims: First, he pointed out that there are documented cases of truly scandalous academic fraud at various universities. Second, he suggested that it is too difficult to be a student and an athlete at the same time. Both of those issues cry out for serious, data-based analysis -- which is exactly what has quickly become Oliver's stock in trade. But on this topic? Not so much.

On the first issue, which is whether college athletes are actually being educated, Oliver really offered nothing other than a few anecdotes. But we do know, from actual statistical analyses, that graduation rates for athletes are not far below those for other students, and at some of the best academic institutions, the rates are above 90%. But perhaps that is misleading, especially if the degrees that athletes receive are in some sense tainted. Although that would be an important issue to analyze, Oliver -- again, in a long-form journalistic expose -- does not even admit that this question exists.

And if such evidence were to come to light, I would be one of the first people to adjust my views. The way that I would change my view on this issue, however, would be to call for changes in the way universities educate their student-athletes. Maybe it would, again, be more difficult to get the NCAA to change its rules on that issue than to get it to allow cash payments, but I doubt it. Even if it would, however, I would rather expend our energies trying to ensure that the athletes do receive a quality education.

Weirdly, the closest thing to an argument that Oliver made regarding excessive time commitment to sports (the second of his two arguments) was to show a clip of Seattle Seahawks' star Richard Sherman, who described how tightly scheduled a college athlete's life is. On that daily agenda, however, Sherman specifically included going to class. Indeed, Sherman himself earned a B.A. as well as credits toward a Master's degree while playing football at Stanford, making him a particularly odd example for Oliver to trot out to support the idea that college athletes are not receiving real educations.

On the other hand, at least Oliver avoided the jaw-droppingly crazy argument that Larry Wilmore (another "Daily Show" alum) offered on his pay-cash-to-athletes segment on "The Nightly Show" this past Monday. There, after showing a clip of a talking head describing the "age-old question" of paying athletes in dollars, Wilmore said this (using his fingers to make ironic air quotes): "OK, but seriously, why do college athletes need 'dollars'? They're
getting paid in education. It's more like 'brain bucks' that they can
redeem at the 'knowledge store' to buy 'wisdom points,' and those wisdom
points will help them have perspective when they are 'homeless.' It
all works out. Because they don't have 'actual money.' "

Talk about being blinded to the big picture! Wilmore mocks the very idea that education can be valuable. At least Oliver steered clear of that mess. Wilmore's show, however, is not engaged in the same enterprise as Oliver's. (Some nights, it is not at all clear what Wilmore's show is doing. After a reasonably strong first month, the show has lately shown signs of flailing.) Oliver is very much committed to the idea that it is possible to entertain people while providing them with important information that goes beyond the usual sound bites and simplistic nonsense.

This is a real shame, because the public square is especially poorly served when it comes to serious discussions of the very real issues raised by college sports. Supposedly serious journalists, such as NYT op-ed writer Joe Nocera, are so badly confused that their writing sometimes seems almost intentionally designed to insult our intelligence.

And, as I noted above, there are some important factual questions that deserve further inquiry. In particular, it would be important for someone at least to begin to describe where the money flows within a university that receives sports-related money. But as good as John Oliver (and, occasionally, his cohorts) might be in dealing with serious issues of public policy, he missed his chance on this one.

Thursday, March 19, 2015

by Michael Dorf
In a very clever NY Times Op-Ed on Tuesday, University of Chicago Law Professor Will Baude offers a plan B in the event that the federal government loses in King v. Burwell: The government could "announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit." Professor Baude explains that the Court's judgment would only be formally binding as to those plaintiffs. Although the courts would treat the ruling in King as a binding precedent, few cases would arise for the very reason that the law's challengers had such difficulty finding plaintiffs in King itself: Most people are happy to take the subsidy and purchase health insurance on the federal exchanges.

But even if most people would be happy with their subsidies, wouldn't the Administration be violating the law by giving those subsidies following a (hypothetical) ruling that the law doesn't allow them? Without naming the theory, to respond to this objection Baude tacitly invokes "departmentalism"--the idea that each branch of government gets to say what the law is in its own sphere, with judicial rulings having force only in judicial settings or where, as an exercise in prudence, political actors choose to give broader effect to judicial rulings. (For some earlier thoughts of mine on departmentalism, click here or here.)

Although Baude is not exactly wrong, I would note a number of objections.

(1) Strong departmentalism of the sort that Baude proposes--the kind that says the executive can take a legal position directly contrary to an authoritative construction by the Supreme Court so long as it can get away with doing so--is a minority position within the commentary. Yes, Lincoln espoused this view in his first Inaugural but he later backed away from it somewhat. So when Baude says that "the Constitution supplies a contingency plan," he is somewhat overstating the case. What he ought to say is that "a highly controversial approach to the scope of judicial precedent supplies a contingency plan."

(2) More important than the rejection of strong departmentalism by most scholars is the fact that the Obama Administration itself apparently rejects strong departmentalism. How do I know? Because the Administration's approach to the Defense of Marriage Act (DOMA) prior to the SCOTUS ruling in United States v. Windsoris inconsistent with strong departmentalism. If the Administration were content to take whatever legal position it wanted regardless of what the courts say, then it would have simply refused to enforce Section 2 of DOMA. When Edith Windsor sought a refund of the $363,053 in estate tax liability which she claimed was not owed due to DOMA's invalidity, a departmentalist Obama Administration would have simply cut her a check. But that's not what the Administration did. Instead, it refused to pay her and though it eventually sided with her on the merits, it continued to refuse to pay her until the SCOTUS itself ruled that DOMA was invalid. Indeed, the whole point of the enforce-but-don't-defend approach was to enable the Administration to permit litigation to go forward--and there is every indication that the Administration would have continued to enforce DOMA if the Court upheld the law. The Administration's refusal to cut a check to Windsor without the Supreme Court's blessing very strongly indicates that it would refuse to cut checks (i.e., provide refundable tax credits) to persons seeking subisidies for federal exchanges if it loses King v. Burwell.

(3) While I have some sympathy for the departmentalist view as a matter of first principle, there is also very good reason to worry about its application in these circumstances. When, in the past, presidents have flirted with departmentalism, they have typically done so in a context in which they clearly had some inherent power. For example, President Jefferson's decision to issue pardons and stop a prosecution for violations of the Sedition Act were clearly permissible exercises of the pardon power and prosecutorial discretion--presidential powers that he could exercise even on the assumption that the courts are final and that the Federalist judiciary thought the Sedition Act valid. Likewise, when Andrew Jackson vetoed the bill rechartering the Second Bank of the United States, he made arguments that had been rejected by the SCOTUS in McCulloch v. Maryland, but he did not need to rely on any inherent power of presidents to disregard laws they think unconstitutional. He could exercise the veto power on policy grounds.

By contrast, the President doesn't have any inherent authority to spend unappropriated money, which is what he would be doing by giving subsidies that, according to the Supreme Court's authoritative construction of the relevant provision of the ACA, are unlawful. No version of departmentalism of which I am aware authorizes the President to usurp congressional power in order to prefer his own understanding of a statute over that of the Court.

(4) As Baude himself recognizes, there may in fact be people or entities who would have standing to challenge an Administration decision to provide subsidies under its non-judicial construction of the ACA.

(5) Even if Baude's solution worked, it could be easily undone by a Republican President, who would then win the politics by saying that he's simply following the law.

Accordingly, Baude's fix is and should be unavailable. If it comes to it, the Obama Administration rightly won't resort to it--and therefore, no Supreme Court Justice should erroneously conclude that the stakes in King v. Burwell are low: Adopting the plaintiffs' reading of the law really would destroy the ACA in the majority of states that haven't established their own exchanges. Some states would establish their own exchanges in response but others, under ideological pressure, would not. Baude has not found an escape hatch.

Wednesday, March 18, 2015

In my column for this week, I take up the question of how to talk, within a pro-choice framework, about the grief that women experience when they miscarry a pregnancy. In this post, in the interest of full disclosure, I want to talk a little about my own miscarriage. It happened many years ago, and it was not an especially "bad" one, in the scheme of things. It happened early--before my "6-week visit." Nonetheless, I felt extremely sad and distraught at the time, and I occasionally still think about how old "he" or "she" would be now if I had been able to take that pregnancy to term.

The very word "miscarry" encourages women to think of pregnancy loss as a personal failure, and I felt additionally isolated in my grief by the seeming triviality (by society's lights) of what had happened. What I had lost was still only an embryo or an early fetus. Yet it felt like more to me.

Though my column explores this at greater length, I share my own story here to add my voice to those who wish to rectify the gap in our support for women, pro-choice women, pro-life women, and undecided women, all of whom need the space and communal understanding to grieve about a lost pregnancy, if and when they endure that loss and experience grief as a result.

Tuesday, March 17, 2015

The Hillary Clinton email story broke two weeks ago. As is now well known, the former Secretary of State exclusively used a private email account during her four years as the nation's top diplomat, and there is continuing uncertainty about whether she has complied with record-keeping laws and other seemingly dreary aspects of public bureaucratic life. Because we are talking about Hillary Clinton, this was big news.

Here on Dorf on Law, I offered some musings about the story three days after it hit the headlines. Professor Dorf followed with some further thoughts last Monday. In my post, I made the rather obvious stipulation that there was no way to know where the story would fall on the spectrum between full-on scandal and one-day story. Two weeks on, what do we know? Here, I will offer some thoughts on the substance of the scandal, along with some further thoughts about the political implications of the story.

To state the obvious, the story remains at least intriguing enough for me to revisit it. There are plenty of topics on which to write, but this one is still interesting and potentially important enough that it seems worth devoting one of my two weekly posts to discussing it further. But why? Given that this is clearly not (and almost surely will not become) a story that will end Hillary Clinton's career, what is it about the story that seems to matter? There appears to be just enough of a hint of wrongdoing, combined with a strong dose of classic Clintonian drama, that the story appears to have real staying power.

As to the wrongdoing, in my March 5 post I suggested that one of the substantive issues that the story raises relates to national security. If Clinton's four years at State were designed to do anything for her politically, it was surely to make her look like a world leader who knows how to keep the nation secure. Anything that tarnishes that image is important to her politically, of course, but it is also worth remembering that national security itself is just a little bit important as a substantive matter on its own merits.

Whereas I had simply argued that there was reason to suspect that there might be national security implications, while noting that I was not drawing any definitive conclusions one way or the other, some people dismissed the national security concern outright. A commenter on my post provided links to two analyses (here and here) that mocked the very idea that Clinton's emailing decisions could have raised national security concerns.

Those analyses essentially boiled down to the idea that everything email-related is vulnerable to hacking, government systems most definitely included. Therefore, the argument continues, she might have been doing the right thing by choosing something more secure. One of the writers further argued that Clinton is smart enough to know that you never do anything important in terms of diplomacy (or anything else, for that matter) via email, because everyone knows that the serious stuff is better handled in person (or, at least, by phone).

Although there is obviously some truth to those claims, the argument overall strikes me as being a bit too similar to the argument that locking one's car doors is a waste of time. Why? Because everyone knows that a truly determined car thief is always going to be able to steal a car, and standard car locks are mere toys that cannot possibly protect against such expertise. Therefore, any smart person also knows never to leave anything truly valuable in a car. Simple.

The problem, of course, is that there are less skilled would-be thieves who would be stymied by something short of a perfect security system. Less-than-perfect security measures, while not reducing the threat to zero, certainly do reduce the overall risks. Moreover, we know that people do in fact become complacent, leaving items of value in their cars, either because they momentarily underestimate the risks, or because they simply forget about it in the rush of other matters. Despite the well-known admonition that email is like a postcard (easily read by anyone who cares to try), people still regularly send personal financial information and security codes via email.

I thus remain unconvinced by the notion that Clinton could not possibly have made decisions on the margin that could have national security implications. Moreover, the evidence is still lacking to be able to conclude that the security gaps in the government's systems are worse than those in any other system. Again, I do not know (and, so far as I am aware, no one yet knows) whether there was a national security breach as a result of Clinton's use of a private server. The "nothing to see here" arguments, however, are far too pat.

In Professor Dorf's post, he offered a sincere defense of the idea that Clinton might have chosen a less-buggy nongovernmental email system, simply to do her job better. Indeed, he notes that it is possible that she knew that the State Department's email system is decidedly less secure than the system that Clinton and her husband installed in their suburban home. However, he followed up that argument with the following devastating question: "What steps, if any, did Clinton take to improve the performance and
security of State Department communications during her tenure--a period
that included the Wikileaks release of over 250,000 diplomatic cables?"

To date, nothing that Clinton or her defenders have offered has come close to answering the questions that I have described here, including Professor Dorf's question. The most important substantive questions, then, have barely been addressed. Instead, the drip, drip, drip of coverage about the story has been focused on questions of style and politics.

In particular, when Clinton finally held a news conference to try to tamp down the story, the response among the pundit class was barely concealed glee. For example, New York Times columnist Maureen Dowd devoted her Sunday op-ed this past weekend to discussing the politics of the story. Dowd, of course, has a long record of attacking Hillary Clinton in ways that amount to a Mean Girl level of viciousness. One would not expect her to say anything positive about Clinton's self-defense, no matter what.

In a way, however, that makes Dowd's column even more important, because Clinton had made Dowd's job so easy. Dowd did, in fact, offer a bit of substance, linking to a Wall Street Journal news article that, apropos of the questions that Professor Dorf and I have discussed, described worries among Bill Clinton's advisors that the Clintons' home email system was especially prone to hacking and technical overload.

Even so, those substantive questions were most definitely not Dowd's focus. She did not have to stretch to make the email story fit into a decades-long story arc about the Clintons, referring back to the Monica Lewinsky scandal and all of the dirty laundry (literal and figurative) with which we are far too familiar. Dowd dismissed Clinton's claim that the email account was a matter of "convenience," asserting that it was really "expedience," and offering a long riff on "a Clintonian tradeoff" that always involves having people accept the Clintons' "blurred lines and fungible ethics and sleazy associates" in exchange for promises of making the world a better place. Dowd's overall theme was to claim that Hillary Clinton feels entitled and believes that the world owes her something.

Again, Maureen Dowd is a particularly harsh critic of Hillary Clinton. Dowd has written plenty of baseless nonsense about Clinton over the years, and I usually come away from those op-eds wondering where the deep animosity comes from. The point here, however, is that Clinton's self-defense failed to put out the fire on the email story, and instead ended up providing sustenance for those who suspect that Clinton is hiding something, or at least that her response to even reasonable questions is to go into lock-down mode and play the victim. She is a victim of much unfair criticism, of course, but that arguably makes it all the more important not to act like one.

One of the stories that The Times ran in the last two weeks (for which I cannot currently find the link) is that the Democratic Party and its largest funders are already so completely in the tank for Hillary Clinton's presidential run that there is simply no alternative to a Clinton nomination. The probability is not 100%, of course, but the facts do sadly suggest that only a complete meltdown by Clinton would prevent the inevitable. If so, then Dowd's op-ed is useful for another reason. Her argument that the Clintons always demand fealty from their friends, even as they put those friends into increasingly difficult situations, suggests that the real lesson from the email story is that Democrats need to accept an important fact: Nothing has changed, and nothing will ever change, when it comes to the Clintons.

Since these discussions are often carried on in terms of "relationships," perhaps the best way to describe this lesson is with the best relationship advice that I have ever heard: "Don't marry someone thinking that you can change them into someone you could love. If you're going to be with someone, do so because you love them as they are, and you'd better accept that they are almost certainly not going to change."

Personally, I was disappointed to learn that there really is no alternative to Hillary Clinton as the Democratic nominee. Now, however, I am adjusting my expectations to expect more of the same from her. I will surely vote for her against any opponent in the general election, but I will also plan on four or eight years of unnecessary and destructive Clintonian drama, center-right policies dressed up with liberal-sounding rhetoric, and hours spent trying to figure out the difference between attacks from the (very real) "vast right-wing conspiracy" and legitimate criticisms of what will surely be a deeply compromised presidency.

Monday, March 16, 2015

by Michael Dorf
N.B. The following essay is being cross-posted today on Notice & Comment, the blog of the Harvard Law & Policy Review, which is the official law review of the American Constitution Society.
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Equality and Liberty in the Same-Sex Marriage Case

Since the Supreme Court’s 2013 decision in United States v. Windsor, invalidating Section 3 of the Defense of Marriage Act, a clear majority of lower courts to hear challenges to state laws forbidding same-sex marriage have found for the plaintiffs. Some state executive officials—like those in New Jersey and Pennsylvania—graciously accepted defeat and did not appeal. Some—like those in Virginia—saw the light and became vigorous advocates for the rights of their gay and lesbian citizens.

But other state officials sought relief in the highest court in the land. They asked the Justices to stay the orders that allowed same-sex marriages to go forward, claiming, inter alia, that if the Court were ultimately to rule against a right to same-sex marriage, it would be very difficult to unwind the marriages that occurred in the interim. Last fall, the Court denied the stay applications, thus sending a very clear signal that at least five Justices intended to recognize a right to same-sex marriage when the issue came before them.

And now the issue is before the high Court. In light of the Court’s refusal to block the thousands of interim same-sex marriages, it is essentially a foregone conclusion that the plaintiffs will prevail in the cases consolidated under the caption Obergefell v. Hodges. The remaining question is how the Court will reach that conclusion.

There are essentially four options. First, the Court could conclude that the justifications offered for the same-sex marriage bans are so weak that they are not even rational—and thus fail the most forgiving test in constitutional law. Judge Richard Posner’s opinion for the U.S. Court of Appeals for the Seventh Circuit in Baskin v. Bogan provides a template for this approach. Responding to the argument that same-sex marriage bans somehow address the problem of accidental procreation by heterosexuals, Judge Posner snarkily observed: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Second, the Court could hold that sexual orientation is a suspect or semi-suspect classification analogous to race or sex, thus requiring heightened scrutiny. Because the same-sex marriage bans are not even rational, a fortiori they fail heightened scrutiny.

Third, the Court could follow the path it blazed in Loving v. Virginia, in which it struck down a state ban on interracial marriage on equal protection grounds but added a separate and independent basis for the ruling: marriage is a fundamental right. Just as laws that discriminate based on the race of a spouse violate that right, so do laws that discriminate based on the sex of a spouse.

Fourth, the Court could follow the approach set out by Justice Kennedy in his majority opinions in Romer v. Evans, Lawrence v. Texas, and Windsor, which eschew formal reliance on the doctrinal boxes of suspect classifications and fundamental rights, instead evaluating the bans against the Constitution’s core guarantees of equality and liberty. As in those earlier landmark rulings, so in Obergefell, the Court could be expected to reject the challenged laws as inconsistent with the dignity of gay and lesbian Americans.

Which path is best? There are advantages and disadvantages to each. Because LGBT Americans continue to face discrimination outside the context of marriage, I would like to see the Court apply heightened scrutiny to sexual orientation distinctions—and thus I have joined with other constitutional law professors in filing an amicus curiae brief urging that approach.

But as recognized by Loving and other cases, it is not necessary to choose between equality and liberty. The Constitution protects both, and while there are circumstances in which these values can conflict, they are not generally zero-sum. As Justice Kennedy explained for the Court in Lawrence, “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”

Accordingly, in addition to the amicus brief urging heightened scrutiny under the Equal Protection Clause, Professor Laurence Tribe (who also signed that brief) and I have filed another amicus brief just on our own behalf, urging the Court to find that same-sex marriage bans violate the fundamental right to liberty as well. In that brief, we respond to an argument made by Judge Paul Niemeyer in his dissent from the Fourth Circuit ruling for a right to same-sex marriage in Bostic v. Schaefer: that the Constitution protects a fundamental right to heterosexual marriage because, until recently, government had not sanctioned same-sex marriage.

Judge Niemeyer’s argument attempts to revive an approach to fundamental rights that Justice Antonin Scalia has advanced for a quarter century but that his colleagues have decisively and repeatedly rejected. Relying in part on an argument set forth in our 1990 article Levels of Generality in the Definition of Rights and our 1991 book On Reading the Constitution, Professor Tribe and I explain in our brief that defining fundamental rights in terms of narrow historical traditions does not achieve the objectivity claimed for this approach, because there is no single dimension or direction to tradition. More basically, as cases like Loving illustrate, specific historical traditions may themselves be inconsistent with the Constitution’s protection of equality and liberty.

Justice Kennedy is sometimes criticized for the soaring rhetoric and doctrinal unorthodoxy of his most important opinions. But when it comes to minority rights, the criticisms miss the mark. Our most fundamental constitutional commitments—found in Section One of the Fourteenth Amendment—sought to uproot America’s original sin: slavery. But what was slavery, if not the negation of both the equality and liberty of enslaved African Americans? The boxes are artificial; Justice Kennedy’s rhetoric rings true.

By recognizing the thread that ties together the plaintiffs’ equality and liberty claims in Obergefell, the Court would be honoring our country’s most important tradition—the tradition of moving our practices closer to our constitutional values.